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Cromartie v. State

Court of Appeals of Georgia, Fifth Division

February 8, 2019

CROMARTIE
v.
THE STATE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFADDEN, PRESIDING JUDGE.

         After a jury trial, Fred Lee Cromartie was convicted of and sentenced[1] for the offenses of trafficking in cocaine (OCGA § 16-13-31 (a)); possession of marijuana with the intent to distribute (OCGA § 16-13-30 (j) (1)); driving without a license (OCGA § 40-5-20 (a)); improper lane change (OCGA § 40-6-123 (d)); and failure to maintain lane (OCGA § 40-6-48 (1)). In the course of the proceedings below, the trial court denied Cromartie's motion to suppress drug evidence found in the rental car he was driving when he was stopped for traffic violations; denied Cromartie's motion for a directed verdict of acquittal on all counts; and denied Cromartie's motion for new trial, in which Cromartie had reiterated his suppression and directed verdict arguments.

         On appeal, Cromartie argues that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to authorize his convictions, but we find that the evidence was sufficient. He also argues that the trial court erred in denying his motion to suppress drug evidence that was found during a traffic stop, but we find the trial court's ruling was supported by sufficient evidence. Finally, he argues that the trial court erred in denying his motion for new trial, but we find this argument fails because his claims regarding the sufficiency of the evidence and his motion to suppress lack merit. So we affirm.

         1. Sufficiency of the evidence.

         At trial, Cromartie moved for a directed verdict of acquittal on every count of the indictment against him on the ground that the evidence presented at trial was insufficient. The trial court denied the motion. In his motion for new trial, Cromartie again challenged the sufficiency of the evidence, and the trial court again rejected his challenge. Cromartie argues that these rulings were error because the evidence was insufficient to authorize his convictions. On appellate review, we apply "the standard espoused in Jackson v. Virginia, [443 U.S 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), ] to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict." Lewis v. State, 296 Ga. 259, 261 (3) (765 S.E.2d 911) (2014) (citation and punctuation omitted). As detailed below, we find that the evidence was sufficient, so the trial court did not err in denying either the motion for directed verdict or the motion for new trial on sufficiency grounds.

         Viewed most favorably to the prosecution, the evidence showed that on December 2, 2015, law enforcement officers saw a rental car with a Florida tag that was being driven erratically, changing lanes without signaling, veering outside of its lane, and speeding. Cromartie was driving the rental car. A second vehicle, also with a Florida tag, was being driven very closely behind the first car and mimicking that car's actions, changing lanes whenever the first car changed lanes. Cromartie's brother was driving the second vehicle. The manner in which the two vehicles were being driven and the fact that one was a rental car suggested to the law enforcement officers that the vehicles might be transporting drugs or otherwise engaged in illegal activity.

         Law enforcement officers stopped both vehicles. Cromartie's brother consented to a search of the second vehicle, which yielded no contraband, and he and his passenger were released with warnings and left the scene. Cromartie, however, was arrested for giving false information to a law enforcement officer when, after being asked by an officer for his driver's license, he provided a copy of his brother's license instead. The officers handcuffed Cromartie and placed him in the back of a patrol car.

         Subsequently, a drug-sniffing dog was brought to the scene, walked around the outside of the rental car, and indicated that drugs were inside the car. The officers then searched the car and found vacuum-sealed bags of cocaine and marijuana in a duffel bag in its cargo area and two bundles of cash, totaling $1901, in the car's glove box. The cocaine was a mixture of 67 percent purity and weighed 53.9868 grams. The marijuana weighed 15.575 ounces. An officer testified that these amounts of marijuana and cocaine were not indicative of personal use.

         (a) Drug offenses.

         As to the counts on which he was sentenced - trafficking in cocaine and possession of marijuana with intent to distribute - Cromartie argues that he was entitled to a directed verdict of acquittal because there was insufficient evidence to show that he either possessed those drugs or had the necessary intent to be convicted of those offenses.[2] A person commits the felony offense of trafficking in cocaine, in violation of OCGA § 16-13-31 (a) (1), by being "in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine[.]" And a person violates OCGA § 16-13-30 (j) (1) by, among other ways, "possess[ing] with intent to distribute marijuana."

         (i) Possession.

         Contrary to Cromartie's argument, the evidence supported a finding that he was in possession of the bags of cocaine and marijuana found in the cargo area of the car he was driving when the law enforcement officers stopped him. Although Cromartie did not own the car, the fact he was driving it gave rise to a rebuttable presumption that he possessed the drugs found within it. See Navarro v. State, 293 Ga.App. 329, 331 (667 S.E.2d 125) (2008); Johnson v. State, 195 Ga.App. 577, 578 (394 S.E.2d 359) (1990). "Whether the evidence presented at trial supported or rebutted that presumption was a question for the jury." Navarro, supra (citation omitted).

         Cromartie argues that other persons could have had access to the rental car and, therefore, the jury was not authorized to find the drugs were in his possession. He cites the rule that the rebuttable presumption discussed above "does not apply if it can be shown that a defendant has not been in possession or control [of the automobile] for a period before discovery of contraband or where others have had equal access to the automobile." Ledesma v. State, 251 Ga. 487 (1) (306 S.E.2d 629) (1983) (citation omitted). Instead, under such circumstances, "the prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused - either circumstantial or direct, other than mere ...


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